Model code of conduct

Code & conflicts

Print edition : May 30, 2014

Narendra Modi taking a selfie with the BJP's election symbol immediately after casting his vote in Ahmedabad on April 30. Two FIRs have been filed for this alleged violation of the model code of conduct. Photo: AFP

THE United Progressive Alliance (UPA) government’s move to appoint a judge to head a commission of inquiry to look into allegations of snooping on a young woman by the state machinery under Gujarat Chief Minister Narendra Modi was slammed by the opposition and the Congress’ allies like the Nationalist Congress Party (NCP) and the National Conference as a case of political vendetta. Some Congress leaders themselves were critical of its timing. On December 26 last year, the Centre decided to set up the commission of inquiry to look into the allegations. The Gujarat government had appointed a two-member commission of inquiry earlier, on November 26, 2013.

When the Centre mooted the idea earlier this month, the model code of conduct for the general election had already come into effect. Though the UPA backtracked on this move following the opposition, this episode, along with the recent decision of the Election Commission (E.C.) to put on hold a proposed gas price hike (which would have benefited domestic producers of gas like Reliance Industries Limited), has raised questions about the nature of the decisions that a government can take once the code comes into effect.

The model code prohibits the announcement of financial grants, laying of foundation stones, promises of construction of roads and provision of drinking water facilities, or ad-hoc appointments in the government or public sector undertakings by Ministers and other authorities. The decisions of governments have, time and again, come into conflict with these provisions. The courts’ approach has also not been consistent when such conflicts arise. It is often difficult to make a clear distinction between activities that are part of the day-to-day functioning of the government and major policy decisions that might unfairly influence the voter. The question whether a policy decision by a government unfairly influences the election process is largely decided by the E.C. The recent controversy has also highlighted the degree to which the model code is effective in achieving its intended purpose of creating an atmosphere for free and fair elections.

During this round of general election, the E.C. asked the State governments of Haryana and Karnataka to defer implementation of a proposal to merge 50 per cent of the dearness allowance with the basic pay or the pension of their employees. In 2006, during the State Assembly elections in Kerala, the E.C. opposed the State government’s plan to implement the Ninth Pay Commission report. Subsequently, the Kerala High Court held that the pay revision did not count as “financial grant” under the model code of conduct. The E.C. later cleared the implementation of the report.

Legal regime

The model code has no statutory backing and there are limitations on how it can be enforced by the E.C. Sanjay Parikh, a Supreme Court lawyer, said: “In case of a violation of the model code of conduct, a warning or a show-cause [notice] can be issued by the Election Commission. If a violation also counts as an electoral offence under Sections 125–138 of the Representation of the People Act [RPA], it would attract punitive action under the relevant sections. Further, Sections 171 A–171 I of the Indian Penal Code also cover offences related to the elections.”

Srijoni Sen of the Vidhi Centre for Legal Policy explained the conflict between the RPA and the model code of conduct: “Under Section 123 of the RPA, the announcement of a new measure or scheme by the government is not a corrupt practice and is not considered as exerting undue influence on the voter. The model code of conduct is a mechanism to ensure respect for the institution [the Election Commission] and create a sense of fairness. A violation under the model code empowers the Election Commission to issue show-cause notices. However, Section 100 of the RPA outlines grounds for cancelling an election in case there are serious violations.”

The attitude of the courts has also not been consistent regarding what constitutes a violation. In 1967, the Madhya Pradesh High Court, in Upendral vs Smt Narainee Devi Jha, held that a State government ordinance reducing land revenue did not amount to a corrupt practice under the RPA. More recently, in 2012, the Allahabad High Court, in Dr Nutan Thakur vs Election Commission of India, upheld the model code’s prohibition of financial grant, construction of roads and provision of drinking water facilities. The court observed that in a country where more than 35 per cent of the population was illiterate and lived below the poverty line, such promises may unfairly affect the election process.

Controversial announcements

The E.C.’s decision to put on hold the gas price hike, which was supposed to have come into effect on April 1, has been perceived by some quarters in the government as an intervention in policy matters. Petroleum Minister M. Veerappa Moily has announced that the hike in gas prices will be implemented with retrospective effect once the model code of conduct is lifted.

Senior lawyer and Aam Aadmi Party leader Prashant Bhushan said that the E.C. was well within its rights to put on hold the gas price hike. “The decision to allow the gas price hike was prematurely taken by the UPA government so as to avoid a possible violation of the model code of conduct and to not leave the policy decision to the next government,” he said.

Parikh was also of the view that there was a logic to the E.C.’s decision. “Any policy decision taken when the model code of conduct is in place which can exert an influence on the decisions of the voter can be interpreted as undue influence. The right to vote is not merely a statutory right, but it is also a matter of freedom of expression and making an informed choice. Any policy announcement intended to directly or indirectly influence the choice of the voter can be said to be a violation of the code.”

The move to appoint a judge to head the commission of inquiry into the snooping scandal, however, is not seen as a violation of the code of conduct. Prashant Bhushan said, “The decision to appoint a commission of inquiry was taken earlier. The appointment of a judge is not a new measure but a mere continuation of a process which had been started before the model code of conduct kicked in.” Added Srijoni Sen: “A decision on an inquiry initiated at an earlier stage cannot be said to be violation of the code of conduct.”

Bhushan said: “It is difficult to draw a hard-and-fast rule to differentiate between day-to-day functioning of the government and a new decision which might influence the electorate. The Election Commission has to apply its mind on a case-by-case basis. But to do this, the Election Commission also needs to be empowered.”

Both Bhushan and Parikh agreed that at present the E.C. had limited powers to enforce the model code of conduct. Bhushan said, “In my view, the Election Commission should have the powers to bar a candidate from contesting elections in case of serious violations. Also, the Commission needs to be strengthened through a more transparent process of appointment.” In fact, in August 2013, the Standing Committee on Law and Justice had recommended in its report on electoral reforms that the E.C. be given powers to derecognise political parties for serious violations of the model code of conduct. This report had also recommended granting statutory backing to the model code.

In 1990, the Goswami Committee on Electoral Reforms had proposed that a violation of the model code of conduct be made punishable with two years imprisonment or fine or both. But this suggestion was not accepted by the government. There are also problems with granting statutory status to the model code. Parikh said: “If the entire model code of conduct is made into law, a violation will mean that a complaint would have to go through the judicial process and a decision on such a complaint would be delayed. The purpose of the model code of conduct is to provide for prompt action to be taken against offenders when the elections are on.”

In 1977, the Supreme Court in Mohinder Singh Gill vs Chief Election Commissioner observed: “Once the appointment is made by the President, the Election Commission remains insulated from extraneous influences, and that cannot be achieved unless it has an amplitude of powers in the conduct of elections.”

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